Practice and Principle: Asymmetrical Federalism in Canada

Transcription

1 Practice and Principle: Asymmetrical Federalism in Canada By: Cameron D. Bodnar Canadian Studies Fellow Mount Allison University Prepared for the 2003 Annual Meeting of the Canadian Political Science Association Dalhousie University

2 1 Canadian academics, it is sometimes said, have an obsession with Canada s constitution and proposals for its reform. James Bickerton and Alain-G Gagnon 1 Introduction James Bickerton and Alain-G Gagnon wrote these words in 1994, in the immediate aftermath of the Charlottetown referendum. The intervening years have not dulled their validity, even if there was relatively little formal activity. Recent events, however, suggest constitutional and institutional reform issues may return to centre stage. The election victory of the Liberal Party of Quebec, the Royal Commission on Renewing and Strengthening our Place in Canada by Newfoundland and Labrador, the 2003 Alberta government Speech From the Throne, and the call for a new deal for Canadian municipalities either promise or could result in formal demands for constitutional change going forward. 2 To a large extent, these events are continuations of established struggles over the relationship between Quebec and the rest of Canada, regarding Quebec s place in the constitutional order and the legal status of separation, 3 and the representative features of Canada s federal system, especially in the west 4 but also in Atlantic Canada. Though unmentioned thus far, aboriginal peoples are among the foremost proponents of a Acknowledgment: Thanks to Andrew Nurse, Fred Fletcher, Lori Turnbull, and Alain Noel for their helpful advice on various aspects of this paper. 1 James P. Bickerton and Alain-G Gagnon, "The Study of Canadian Politics," in Canadian Politics, ed. James P. Bickerton and Alain-G Gagnon (Peterborough: Broadview Press, 1994). 2 Not to mention interest on the part of British Columbia, Quebec, Prince Edward Island and the Law Commission of Canada in electoral reform, which does not necessarily require constitutional amendment to go forward though it would certainly be a substantial change. 3 The Quebec Secession Reference notwithstanding. 4 See: Roger Gibbins, "Western Canada: "the West Wants in"," in Beyond Quebec: Taking Stock of Canada, ed. Kenneth McRoberts (Montreal and Kingston: McGill-Queen's University Press, 1995).and Roger Gibbins, "Constitutional Politics," in Canadian Politics, ed. James P. Bickerton and Alain-G Gagnon (Peterborough: Broadview Press, 1999).

3 2 restructured Canadian federation. 5 That so many issues remain unresolved is not due to a lack of effort. As Peter Russell so famously describes, Canadians have made five attempts at mega-constitutional change over the last forty years. 6 With the partial exception of 1982, all have failed. With the likelihood of formal demands thus rising, it be interesting to explore a few aspects of these attempts to see if anything can be learned. Although my paper s axis remains the present impasse, my argument centres on English Canada, or the Rest of Canada, or Canada Outside Quebec and First Nations. 7 The general topic is asymmetrical federalism. My aim is to call into question the viability of asymmetrical federalism for resolving Canada s constitutional impasse. My objections are both theoretical and practical. However, the discussion is informed by a more substantive argument. In short, I raise the question of whether the current most popular way of resolving the impasse, re-founding Canada a multinational state, can accomplish the task set for it. I begin with a general discussion of asymmetrical federalism in Canada, follow with the theory and end with a discussion of recent proposals. My focus lies principally with the academic literature. In s my aim is to explore how the academic literature in English Canada understands the impasse and its possibilities for resolution. The Context Although it is widely held that asymmetrical federalism holds little popular support, this has not prevented discussion and debate over its merits in academic circles. Especially prominent in the wake of the Charlottetown failure, the proponents draw a 5 These issues do not exhaust the field. Non-territorial identities, such as gender, race, ethnicity, sexual orientation, and religion also test, in a variety of ways, the capacity of Canada s political institutions. 6 See: Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, Second ed. (Toronto: University of Toronto Press, 1993). 7 To somewhat facetiously characterize the complexity of one aspect of the present situation.

4 3 relatively consistent picture. The tone of this literature is one of its most remarkable features. Simply put, it is one of lament for missed opportunity. 8 The opening, and its potential to resolve Canada s difficulties is, perhaps, best described by Reg Whitaker: The case for asymmetrical federalism would be that everyone wins and no one loses: Quebec gets exclusive powers that no other province wants or needs, while the rest of Canada gains an effective national government that is not rejected by Quebec. 9 The collection where Whitaker articulates this argument contains similar treatments by Peter Hogg, Judy Rebick, Maude Barlow, Peter Lougheed and Kenneth McRoberts. 10 Such sentiments, moreover, are not limited to a single volume. Scholars as diverse as Alan Cairns, Alain Noel, and James Tully come to similar conclusions in the immediate aftermath of the 1992 referendum. 11 Guy LaForest, Samuel LaSelva, Kenneth McRoberts, Philip Resnick, Charles Taylor, and Jeremy Webber devote entire volumes to Canada s constitutional crisis where the issue of asymmetry is prominently discussed Martin Westmacott makes a similar point, although he limits his references to the Whitaker piece cited below. See: Martin Westmacott, "The Charottetown Accord: A Retrospective Overview," in Challenges to Canadian Federalism, ed. Martin Westmacott and Hugh Mellon (Scarborough: Prentice Hall Canada Inc., 1998), Reg Whitaker, "The Dog That Never Barked: Who Killed Asymmetrical Federalism?," in The Charlottetown Accord, the Referendum, and the Future of Canada, ed. Kenneth McRoberts and Patrick J. Monahan (Toronto: University of Toronto Press, 1993), See the respective chapters in: Kenneth McRoberts and Patrick J. Monahan, eds., The Charlottetown Accord, the Referendum, and the Future of Canada (Toronto: University of Toronto Press, 1993). 11 Alan Cairns, "Constitutional Change and the Three Equalities," in Reconfigurations: Canadian Citizenship and Constitutional Change, ed. Douglas Williams (Toronto: McClelland and Stewart Inc., 1995).; Alain Noel, "Deliberating a Constitution: The Meaning of the Canadian Referendum of 1992," in Constitutional Predicament: Canada after the Referendum, ed. Curtis Cook (Montreal and Kingston: McGill-Queen's University Press, 1995).; James Tully, "Diversity's Gambit Declined," in Constitutional Predicament: Canada after the Referendum of 1992, ed. Curtis Cook (Montreal and Kingston: Mc-Gill- Queen's University Press, 1994). 12 Guy LaForest, Trudeau and the End of a Canadian Dream, trans. Paul Leduc Brown and Michelle Weinroth (Montreal and Kingston: McGill-Queen's University Press).; Samuel V. LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: McGill-Queen's Unviversity Press, 1996).; Kenneth McRoberts, Misconceiving Canada: (Toronto: Oxford University Press, 1997).; Philip Resnick, Thinking English Canada (Toronto: Stoddart Publishing Co. Limited, 1994).; Charles Taylor, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, ed. Guy LaForest (Montreal and Kingston: McGill-Queen's University Press,

5 4 An edited volume by F. Leslie Seidle also directly addresses the issue. 13 More recently, Alain-G Gagnon, Jane Jenson, and Will Kymlicka added to the chorus of academics sympathetic to asymmetry. 14 As Whitaker points out, these discussions take place against the reality that actually existing federalism [in Canada] has always been asymmetrical in practice. 15 Of course, taken by itself, this neither explains the existence of this aspect of Canadian federalism nor justifies it. It does, however, point to the potential existence of an incongruity between how the constitution is understood and how it is lived on a daily basis. As such, it may be useful to briefly explore the concept and its history in Canada. It is useful, if not particularly exciting, to begin with Peter Russell s definition of the concept: asymmetrical federalism means that the provinces do not all exercise the same powers. 16 As he continues, there are two formulations: hard/direct asymmetry, involving the allocation of powers to one, or more but not all, province(s); and soft/indirect asymmetry, where the specific allocation of powers proceeds at the request of individual provinces. 17 There are a few examples of hard asymmetry in the history of Canadian federalism. One of the more obvious, and problematic lies with the fact that Manitoba, 1993).; Jeremy Webber, Reimagining Canada: Language, Culture, Community, and the Canadian Constitution (Montreal and Kingston: McGill-Queen's University Press). 13 F. Leslie Seidle, ed., Seeking a New Canadian Partnership: Asymmetrical and Confederal Options (Montreal: Institute for Research on Public Policy, 1994). 14 Alain-G Gagnon, "The Moral Foundations of Asymmetrical Federalism: A Normative Exploration of the Case of Quebec and Canada," in Multinational Democracies, ed. Alain-G Gagnon and James Tully (New York: Cambridge University Press, 2001).; Jane Jenson, "Recoginising Difference: Distinct Societies, Citizenship Regimes and Partnership," in Beyond the Impasse: Toward Reconciliation, ed. Roger Gibbins and Guy LaForest (Montreal: Institute for Research on Public Policy, 1998).; Will Kymlicka, Finding Our Way: Rethinking Ethnocultural Relations in Canada (Toronto: Oxford University Press, 1998). 15 Whitaker, The Dog that Never Barked, 107. Peter Russell makes the same point in Russell, Constitutional Odyssey Ibid. 17 Ibid.

6 5 Alberta and Saskatchewan did not initially hold jurisdiction over natural resources, as was the case with all other provinces upon entering Confederation. Often, this provision is cited as evidence of intent to control economic development in the west in a manner primarily to the advantage of central Canada and is, thus, often linked with Western alienation. 18 Control over natural of resources was extended to the three prairie provinces in Although the conditions of Manitoba, Alberta, and Saskatchewan s entry are exceptional in some respects, they are not completely so. As Jennifer Smith describes, the terms on which each of the provinces entered the union varied, as did the instruments that authorized their entry, which ranged from imperial statutes to imperial orders-in-council to federal statutes. 19 Nova Scotia even managed to get the terms of its entry changed, in order to address a range of grievances some of which extended to the pre-confederation period. 20 Section 94 is among the other clauses legitimizing a degree of hard asymmetry. 21 The main part of the clause clearly excludes Quebec, 22 granting the federal government the power to make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights, with the consent of the provinces involved. The most immediate explanation for excluding Quebec from this clause is its distinct civil legal system, itself protected under section 129, although Samuel LaSelva argues 18 See: Don Braid and Sydney Sharpe, Breakup: Why the West Feels Left out of Canada (Toronto: Key Porter Books, 1990). 19 Jennifer Smith, "The Meaning of Provincial Equality in Canadian Federalism," in Institute of Intergovernmental Relations Working Paper Series (Queen's University, Kingston, Ontario: 1998), See: Del Muise, "Railroaded into the Union," in Readings in Canadian History: Pre-Confederation, ed. R. Douglas Francis and Donald B. Smith (Toronto: Holt, Rinehart and Winston of Canada, Limited, 1990). 21 Including section 93(2), on denominational schools, which applies only to Ontario and Quebec, and sections 25 and 35 of the Charter of Rights and Freedoms, on Aboriginal rights. 22 The clause refers specifically only Ontario, New Brunswick, and Nova Scotia. It is interesting to note, if, as F.R. Scott suggests, the clause can be extended to all provinces outside Quebec, it would have, if utilized, resulted in an asymmetrical framework similar to, but not nearly as expansive, as the one promoted in recent years. See: F.R. Scott, Essays on the Constitution (Toronto: University of Toronto Press, 1977) 122.

7 6 that it also, potentially, justifies Quebec s historic claim to a veto over constitutional amendments. 23 Section 94A, however, is not consistent with hard asymmetry. Added in 1966, it gives the federal government jurisdiction over old age pensions and supplementary benefits, but grants all provinces the ability to opt out. Quebec, of course, is the only province to make use of this clause. The Quebec Pension Plan, as a result, is probably the most well known example of asymmetry in Canada. Its adoption, moreover, went relatively smoothly, though the process was not entirely without intergovernmental conflict. 24 The constitutional amendment granting the federal government jurisdiction over old age pensions is thus best understood as an example of soft asymmetry. 25 The amendment allowed Quebec to adopt its own scheme, but the clause provides the same opportunity to the other provinces. This approach to intergovernmental relations and institutional reform was consistent with the federal government s general manner of accommodating the rise of Quebec nationalism and the Quiet Revolution. As McRoberts describes, Lester Pearson s Liberal government recognized the specificity of Quebec by enter[ing] into a wide variety of federal-provincial arrangements that enabled Quebec to take full responsibility for programs that in the rest of the country were managed jointly by the federal and provincial governments or even by Ottawa alone. 26 Pearson s successor, Pierre Trudeau, did not share this philosophy, and worked, over time, to lessen the impact of such asymmetrical arrangements, if not eliminate them LaSelva, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood. 24 On this point see: McRoberts, Misconceiving Canada: Jennifer Smith also makes this point. See: Smith, "The Meaning of Provincial Equality in Canadian Federalism," McRoberts, Misconceiving Canada: Ibid

8 7 While Trudeau s initial efforts were directed at the various arrangements Pearson entered into, he also sought to prevent future problems by insist[ing] that [the federal government] must play the same role in all provinces. 28 If the direction of this argument is unclear, I mean to point to Trudeau s emphasis on provincial equality in intergovernmental relations. This did not always result in perfectly symmetrical policy developments, as the various federal-provincial immigration agreements signed during the 1970s shows. 29 At the same time, however, the moves were consistent with a developing emphasis on provincial equality. 30 For present purposes, the most significant, and possibly most controversial, move in this context was the implementation of the Established Programs Financing Act (EPF) in Although the reasoning behind the move is contested, there is little debate over its long-term significance to the evolution of social policy in Canada. It represents the first, in a series of moves, undertaken by successive federal governments, that not only sought to standardize treatment of the provinces, but fundamentally alter the approach to fiscal intervention in areas of provincial jurisdiction, by shifting from shared-cost financing through transfer payments to systems of block grants and tax points Kenneth McRoberts, English Canada and Quebec: Avoiding the Issue (Toronto: Robarts Centre for Canadian Studies, 1991). 29 The Cullen-Couture Agreement, on immigration, was signed in Five other provinces quickly signed similar, though not nearly as expansive, agreements. On this point see: McRoberts, Misconceiving Canada: and One which was certainly not limited to Trudeau and did not originate with him. 31 Though, as Yves Vaillancourt points out, the use of tax points does not begin with Established Programs Financing. The original agreement between the Lesage and Pearson governments that allowed Quebec to opt out of social, health and employment training made extensive use of this mechanism. See: Yves Vaillancourt, "Remaking Canadian Social Policy: A Quebec Viewpoint," in Remaking Canadian Social Policy: Social Security in the Late 1990s, ed. Jane Pulkingham and Gordon Ternowetsky (Halifax: Fernwood Publishing, 1996).

9 8 To be clear, these measures may have reduced the amount of soft asymmetry in Canada, but they have not eliminated it. 32 Nor, for that matter, has hard asymmetry. Although the Charter of Rights and Freedoms and the amending formula, both adopted in 1982, assume provincial and individual equality, 33 a number of provisions apply only to one, or more provinces, but not all. Many of these provisions address the accommodation of minority groups, linguistic minorities in general, and the circumstances of Quebec in particular. More recent measures were implemented primarily at the request of New Brunswick. 34 It is questionable, however, whether any of these provisions result in, as Hogg puts it, differences so marked as to justify the description of special status for any province. 35 Instead, the variations are probably better understood in terms of a general recognition of the need for flexibility when addressing local circumstances. 36 To be clear, the amount of difference sanctioned by this recognition does not go so far as to establish special status for any province, then Canadian federalism does not violate the parameters of modern constitutionalism, to borrow a term from James Tully. 37 In short, Canadian federalism embodies a linear conception of equality, albeit one that is more substantive than is perhaps generally recognized. At the same time, flexibility speaks to acceptance of difference as a matter of degree rather than principle. That is, 32 For a summary see: David Milne, "Exposed to the Glare: Constitutional Camouflage and the Fate of Canada's Federation," in Seeking a New Canadian Partnership: Asymmetrical and Confederal Options, ed. F. Leslie Seidle (Montreal: Institute for Research on Public Policy). 33 Assuming no tension between these two equalities. 34 Referring specifically to the amendment making New Brunswick officially bilingual. 35 Peter Hogg, Constitutional Law of Canada, 2002 Student Edition ed. (Toronto: Carswell, 2002) Milne, "Exposed to the Glare: Constitutional Camouflage and the Fate of Canada's Federation." 37 James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (New York: Cambridge University Press, 1995).

10 9 divergences are tolerated only to the extent that they remain consistent with established parameters (i.e., national standards). Canadian federalism could thus be thought of as incorporating a variation of the subsidiarity principle. To quote Hogg, subsidiarity is a principle of social organization that prescribes that decisions affecting individuals should be as far as possible, be made by the level of government closest to the individuals affected. 38 Canada s adherence to this principle, however, is not complete, at least outside Quebec and aboriginal communities. Although it may be the case that they laws that impact most directly on individuals are for the most part provincial, 39 it is hard to deny the centralizing thrust of intergovernmental relations, especially prevalent since World War II, that has resulted in a relative decline in jurisdictional autonomy. On the one hand, there is functional aspect to this decline that can be attributed to the tasks associated with creating and maintaining a comprehensive welfare state in a country with both wide regional economic disparities and sharply delineated taxation powers. On the other hand, there is a political cultural aspect to the decline best illustrated by the tendency, noted as early as 1962 by James Corry, for the nine English speaking provinces to simply accept transactions with a strongly centralizing effect, increasing the leverage of the national government on the policies of provincial governments as well as on the economy of the country. 40 This is not to suggest that resistance to federal incursions in areas of provincial jurisdiction is absent outside Quebec, but only that such resistance does not, typically, challenge the legitimacy of such moves. 38 Hogg, Constitutional Law of Canada Ibid James Corry, "Constitutional Trends and Federalism," in Politics: Canada, ed. Paul Fox (Toronto: McGraw-Hill, 1962),

11 10 Take, for example, recent efforts to relegitimize intergovernmental agreements negotiated through the mechanisms of elite accommodation. In short, it would be tough to argue that these are decentralizing in nature. For the most part, they reaffirm, if occasionally limit, the federal government s ability to direct policy developments throughout the country. To quote Robert Howse: The [federal] government has successfully pursued and achieved a major agreement with the provinces on the removal of barriers to internal trade [and] it has restructured its policy role in labour market training, developing agreements with the provinces that get the federal government out of service delivery end while vindicating the national interest through performance-based, negotiated national standards. 41 Since 1997, the federal government negotiated the Social Union Framework Agreement, saw the release of the final report of the Royal Commission on the Future of Health Care in Canada and reached an agreement in principle to implement its recommendations, and ratified the Kyoto Accord. All, of course, are not satisfied with the federal government s capacity to direct policy developments assumed by such agreements. At the same time, only Quebec 42 has consistently objected to the principle at stake and, perhaps most prominently, informs its rejection of the Social Union Framework Agreement. Whereas the other nine provinces were satisfied with clarifying the federal government s use of its spending power, in relation to both Ottawas s freedom to launch new programs and its discretion to reduce spending on existing ones[,] Quebec rejected the agreement on the grounds that such collaboration is a poorly disguised attack on Quebec s areas of 41 Robert Howse, "Searching for Plan A: National Unity and the Chretien Government's New Federalism," in Canada: The State of the Federation 1997, Non-Constitutional Renewal, ed. Harvey Lazar (Kingston: Institute of Integrovernment Relations, 1997), It should be noted that this characterization applies to the realm of formal intergovernmental relations, that is between the provinces and the federal government. In short, it does not account for similarly principled resistance to the federal government on the part of Canada s aboriginal peoples, manifested most recently in the logic of the Assembly of First Nations position on the federal government s Fiscal Management Act.

12 11 exclusive jurisdiction. 43 In other words, whereas the rest of Canada appears to have affirmed the legitimacy of federal intervention in areas of provincial jurisdiction by signing the agreement, Quebec once again rejected it. In short, the recent agreements remain consistent with the general belief, summarized well by Howse, that the federal government must continue to retain its own distinctive policy stake in the Canadian associative community; it is not merely a facilitator of interprovincial cooperation to sustain that community, but the democratic authority that is uniquely responsible for that community in itself. 44 As I will show, however, a debate exists over the boundaries, in Howse s terms, of the Canadian associative community. The case for asymmetrical federalism, in this context, is that it is possible to institutionally accommodate Quebec, Aboriginal peoples, and the rest of Canada by allowing each community to adopt the powers it requires to promote its interests, while maintaining a common representative framework. At the same time, doing so requires the rest of Canada to accept that asymmetry is more than a convenient administrative apparatus necessary to accommodate local differences, but also an important principle in and of itself. 45 The Principle Before entering a more precise discussion of what asymmetry entrenches, I should clarify my earlier characterization of the post-charlottetown consensus. In short, there was no unanimity. Barry Cooper preserved the critique he and David Bercuson had earlier developed, where they rejected asymmetry on the grounds that it conflicts with the 43 Harvey Lazar, "The Social Union Framework Agreement and the Future of Fiscal Federalism," in Canada: The State of the Federation 199/2000, toward a New Mission Statement for Canadian Fiscal Federalism, ed. Harvey Lazar (Kingston: Institute of Intergovernmental Relations, 2000). 44 Howse, "Searching for Plan A: National Unity and the Chretien Government's New Federalism," Here I echo an argument made by Jeremy Webber that I address in more detail below.

13 12 rule of law and advocated separation as the only viable option. 46 Perhaps most prominently, Pierre Trudeau maintained the critique he applied during the Meech Lake Accord debates. For example, in response to the revised version of the distinct society clause in the Charlottetown Accord he made the following statement: The charter, whose essential purpose was to recognize the fundamental and inalienable rights of all Canadians equally, would recognize thenceforth that in the province of Quebec these rights could be overridden or modified by provincial laws whose purpose is to promote a distinct society and more specifically to favor the French-speaking majority that has a unique culture and a civil law tradition. 47 Trudeau was not the only opponent of the Charlottetown Accord, although he might have been its most significant. 48 A diverse group including, most prominently, the Reform Party and the National Action Committee on the Status of Women also opposed the Accord. As a result, as Russell describes, the referendum contest was cast primarily in terms of the county s national political leadership against the highly diverse and uncoordinated efforts of interest groups and activists alienated from that leadership. 49 To be clear, however, objecting to the accord was not synonymous with a critique of asymmetrical federalism. Judy Rebick, President of the National Action Committee on the Status of Women at the time, as noted above, supported, and still supports, See: Barry Cooper, "Theoretical Perspectives on Constitutional Reform in Canada," in Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory, ed. Anthony A. Peacock (Toronto: Oxford University Press, 1996). 47 Pierre Trudeau, "Quebec's Blackmail," in Against the Current: Selected Writings , ed. Gerard Pelletier (Toronto: McClelland and Stewart, 1996), Support for the agreement, Peter Russell points out, suffered its most precipitous decline immediately following Trudeau s critical speech at Maison Egg Roll on 2 October See: Russell, Constitutional Odyssey Ibid Judy Rebick, Imagine Democracy (Toronto: Stoddart Publishing Co. Limited, 2000) 31.

14 13 asymmetry, but described the accord as a mistaken compromise. 51 In her case, and most, if not all, of the aforementioned, support for asymmetry is consistent with a general critique of the terms of the accord precisely because it did not go far enough. In this context, the structure of the Canada clause, the reformed Senate, the guarantee for Quebec of a specified percentage of the seats in the House of Commons, the revisions to the divisions of powers, and the Aboriginal self-government proposal all drew considerable criticism (add references). At the same time, as mentioned above, all of the first ministers and the leadership of the Assembly of First Nations endorsed the agreement. Thus, as Alain Noel points out, the immediate reaction was to blame the referendum s failure on an uninformed, moody, [and] inattentive electorate manipulated by a group of strange bedfellows, who had nothing in common besides an interest in defeating the proposed, and probably any, agreement. 52 In short, to suggest that the public simply did not grasp the sound balance, to borrow a phrase from Peter Lougheed, that had been struck. 53 Subsequent research, however, not only calls the empirical basis of this thesis into question, 54 but also raises substantive theoretical questions about the character of the compromise itself. McRoberts makes the point most clearly, arguing that while [t]he Charlottetown Accord appears to adopt both English Canada s and Quebec s 51 Judy Rebick, "The Charlottetown Accord: A Faulty Frameword and a Wrong-Headed Compromise," in The Charlottetown Accord, the Referendum, and the Future of Canada, ed. Kenneth McRoberts and Patrick J. Monahan (Toronto: University of Toronto Press, 1993), Alain Noel, Deliberating a Constitution: The Meaning of the Canadian Referendum of 1992, in Curtis Cook (ed.), Constitutional Predicament: Canada after the Referendum of 1992 (Montreal and Kingston: McGill-Queen s University Press, 1994), p Peter Lougheed, "The Charlottetown Accord: A Canadian Compromise," in The Charlottetown Accord, the Referendum, and the Future of Canada, ed. Kenneth McRoberts and Patrick J. Monahan (Toronto: University of Toronto Press, 1993). 54 See: Lawrence LeDuc and Jon H. Pammett, "Referendum Voting: Attitudes and Behaviour in the 1992 Constitutional Referendum," Canadian Journal of Political Science XXVIII, no. 1 (1995). and Richard Johnston et al., The Challenge of Direct Democracy: The 1992 Canadian Referendum (Montreal and Kingston: McGill-Queen's University Press, 1996)..

15 14 constitutional projects, it qualifies them very substantially in an effort to make them acceptable to the other side. 55 The reformed Senate, on one hand, came at the request of Outer Canada, and was consistent, in principle at least, with a general concern to protect and strengthen the role of the federal government[,] but was made less than Triple E in order to placate Quebec. 56 The distinct society clause, on the other hand, was made extremely narrow in scope, in order to satisfy the English Canadian demand, that the roles of the federal government not be weakened in any fundamental manner. 57 And although the limitations of the reformed Senate and the guarantee of twenty-five percent of the seats in the House of Commons can be construed as gains for Quebec, such compromises did not respond to its traditional demand of expanding the powers of the Quebec government. 58 Thus, rather than a mutual accommodation of the two projects we have a mutual frustration of them. 59 Nor is McRoberts alone in this assessment. Following a similar logic, Rebick asserted that the Accord is a compromise that doesn t give anyone what they want. 60 And among the reasons of substance for the failure of the accord offered by Jeremy Webber is that the negotiators had allowed the proposals to be so whittled down that they ended up satisfying neither their supporters nor their opponents. 61 Even the Aboriginal self-government provisions, widely perceived as the most generous part of the agreement, were not immune from similar criticisms. Menno Boldt, for example, 55 Kenneth McRoberts, "Disagreeing on Fundamentals: English Canada and Quebec," in The Charlottetown Accord, the Referendum, and the Future of Canada, ed. Kenneth McRoberts and Patrick J. Monahan (Toronto: University of Toronto Press, 1993), Ibid., Ibid., Ibid., Ibid., Rebick, "The Charlottetown Accord: A Faulty Frameword and a Wrong-Headed Compromise," Jeremy Webber, Reimagining Canada: Language, Culture, Community, and the Canadian Constitution (Montreal and Kingston: McGill-Queen's University Press, 1994).

16 15 noted that Aboriginal participation in the process leading up to the agreement was presented by the federal government as a commitment to Canadian sovereignty; as an interest group undertaking to secure a legitimate place for themselves as citizens of Canada[,] while the Assembly of First Nations leadership asserted that their involvement in the process was as sovereign nations who are concerned that Canadians should entrench appropriate principles of law in their constitution that will ensure just treatment of Indian First Nations. 62 This substantive difference of opinion is particularly important to note, Boldt argues, because the terms of the agreement only entrenched an undefined principle with provision of a process for defining the principle. 63 And given how successfully Aboriginal peoples have negotiated Canada s political and legal institutions in the past, he is not optimistic their interpretation would win. All of this, of course, is to suggest that the failure of the accord cannot be understood as a rejection of asymmetry. At the same time, there is precious little suggesting that the concept holds merit in the eyes of the public. The participants at the 1992 Halifax conference on the constitutional future of Canada, as is widely noted, endorsed the concept. The participants were hardly representative of Canadian society, however. Notably, there is evidence showing that the other main possibility, decentralization, was not without support. As Lawrence LeDuc and Jon H. Pammett point out, [t]he most popular part of the Charlottetown Accord was the plan to reform the Senate. At the same time, they continue, [t]here was general support for giving 62 Menno Boldt, Surviving as Indians: The Challenge of Self-Government (Toronto: University of Toronto Press, 1994). 63 Ibid.

17 16 more powers to the provinces in specific areas and for the plan to establish Aboriginal self-government. 64 To be clear, this is not to suggest that solving Canada s constitutional difficulties is as simple as offering straightforward alternatives such as asymmetry or decentralization. I would not even be so bold as to suggest straightforward alternatives are available. There are a number of questions that would require answers, whatever option is chosen. 65 I tend, however, to agree with Reg Whitaker and Kenenth McRoberts, and Alain-G. Gagnon, who all argue that the technical objections to asymmetry are not as overwhelming as they appear. 66 At the same time, they are not insignificant. 67 This has not stopped observers from investigating the conditions under which asymmetry could be made acceptable in principle. At the risk of doing violence to what is, in fact, a fairly diverse field, one of the interesting features of these examinations is their tendency to view the political culture of Canada outside Quebec, and Aboriginal communities, as the primary stumbling block. In short, its inclination to define (or want to define) the political community in linear terms (i.e., as a collection of individuals living in a single nation, or as members of ten provinces, or both) misconstrues the true nature of Canada. Prioritizing issues of identity and citizenship, they see the need to rethink, or reconceptualize, the Canadian political community, and English Canada, or Canada Outside Quebec or the Rest of Canada in particular, as a necessary first, or last, step. The 64 LeDuc and Pammett, "Referendum Voting: Attitudes and Behaviour in the 1992 Constitutional Referendum." 65 On this point see: Resnick, Thinking English Canada. and Roger Gibbins, "The Institutional Parameters of Canada-Quebec Partnership," in Beyond the Impasse toward Reconciliation, ed. Roger Gibbins and Guy LaForest (Montreal: Institute for Research on Public Policy, 1998). 66 Whitaker, "The Dog That Never Barked: Who Killed Asymmetrical Federalism?," Hogg offers one of the bluntest objections, arguing that it raises difficult questions about the role in the central institutions, especially the federal Parliament, of the representatives of the province or provinces with special status. It seems wrong that they should participate in decisions which in their province are a provincial responsibility. Hogg, Constitutional Law of Canada 98.

18 17 general assumption being that once this identity is settled, or more clearly defined, the rest will fall out, for better or worse. 68 The attempt to (re)define Canada as a multinational state is archetypical in this context. Alan Cairns, for example, incorporated this perspective to explain Canada s recent constitutional difficulties. Prior to the Charlottetown accord, he defined Canada s difficulties in terms of the constraining effect[s] imposed by competing conceptions of equality. 69 He concluded that [t]he symmetry these principles [provincial, individual, and national equality] bring is paid for by a diminished constitutional capacity to provide individualized responses to distinct societies and to distinct situations. 70 This problem, he argued, is particularly difficult outside Quebec because the rest of Canada is a mental construct only. 71 constitutional concerns. 72 As a result, it is most in need of assistance to address its He expanded this analysis after the referendum, arguing [t]he process leading up to the [Charlottetown] accord, its contents, and the verdict of the electorate reveal a multinational society struggling for constitutional expression in a federal constitutional order that defines Canadians in the traditional terms of province and country. 73 However, whereas the Quebec and Aboriginal identities are relatively settled, in that they perceive themselves as distinct/independent political/national communities, 68 In the interests of clarity, I mean to allude to the fact that not everyone sees this process ending successfully, that is with the saving of Canada. Barry Cooper and David Bercuson and Guy Laforest, most notably, though for quite different reasons, argue that the only clear solution for Quebec question is to part ways. See: David J. Bercuson and Barry Cooper, Deconfederation: Canada without Quebec (Toronto: Key Porter Books Limited, 1991). and LaForest, Trudeau and the End of a Canadian Dream. 69 Cairns, "Constitutional Change and the Three Equalities," Ibid., Ibid., Ibid., Alan Cairns, "The Charlottetown Accord: Multinational Canada V. Federalism," in Constitutional Predicament: Canada after the Referendum of 1992, ed. Curtis Cook (Montreal and Kingston: McGill- Queen's University Press, 1994).

19 18 the rest of Canada lacks a positive nationalist self-consciousness[.] 74 And, as long as this remains the case, it will prove difficult to engage with Quebec, and Aboriginal peoples, though to a lesser extent, on the nation-to-nation basis necessary for a mutually beneficial compromise. Kymlicka, more recently, provided a similar breakdown, arguing, what he terms, English-speaking Canada s inability to come to grips with the multinational reality of Canada as a whole plays a role in generally misreading some social conflicts. In particular, it leads to the equation of demands made by national minorities, like Quebec and Aboriginal peoples, with those of other minorities, such as new immigrant groups. Their demands, however, are substantively different. And once this is granted, the character of the compromises required becomes clearer. At the same time, he argues, this process is hindered in English-speaking Canada by the continued desire to maintain a sense of a common Canadian nationhood. Consequently, if we are to move beyond the current situation, it is necessary for English-speaking Canadians to reflect on the interests they share as a language community. 75 Kymlicka only hints at what positive benefit might result from an exercise of this sort, arguing that [w]hat really matters is for English-speaking Canadians to recognize that they have certain common interests as a linguistic group, interests that have historically been taken as definitive of pan-canadian nationalism but that are in fact not shared by the members of national minorities. 76 Importantly, for present purposes, he lists among these attributes the aspiration to define [a] national identity in terms of certain values, standards, and entitlements that can be 74 Ibid. 75 Kymlicka, Finding Our Way Ibid. 165.

20 19 upheld from sea to sea only through federal intervention in areas of provincial jurisdiction. 77 In essence, Kymlicka argues that Canadians outside Quebec need to more closely link an already existing understanding of the common good with a more narrowly defined conception of political community. This, Kymlicka hopes, will lead us to some form of asymmetrical multination federalism. 78 Again, Kymlicka is not alone in preferring this solution. Nor, it should be pointed out, is its popularity limited to English Canada. As McRoberts notes, elites in Quebec have picked up on the language of multinationalism, arguing that it reflects the reality of Quebec society. 79 This development should not be surprising. To the extent that Quebec society has internal dimensions similar to that of Canada as a whole, 80 the logic of multinationalism should have a similar intuitive appeal. It is also consistent with the expressed desire to define Quebec nationalism more inclusively. On the political level, as Whitaker notes, this desire is epitomized by the efforts of the Parti Quebecois to [distance] itself from a narrow, exclusionary nationalism based on the core ethnic group by adopting a concept of territorial sovereignty. 81 To be clear, this transition has not always gone smoothly and remains contentious. Nor is it, to reiterate, an affirmation of multinationalism, of which, as in the rest of Canada, there is little indication that the holds appeal beyond the academy. 82 These arguments raise a host of questions regarding the place of communal attachments explored most fully by Charles Taylor. According to Taylor, individual 77 Ibid Ibid.* 79 Kenneth McRoberts, "Canada and the Multinational State," Canadian Journal of Political Science XXXIV:4, no. December (2001). 80 Comment on demographics 81 Reg Whitaker, "Sovereignties Old and New: Canada, Quebec and Aboriginal Peoples," Studies in Political Economy 58, no. Spring (1999): McRoberts, "Canada and the Multinational State."

21 20 identity develops out of and in association with a particular community. Although an individual may find himself part of a community within a larger community, his identity will only be directly related to the former, even if it is influenced, to a certain extent, by the latter. In Canada this relationship plays itself out most noticeably, Taylor argues, in the way Quebeckers accept Canada, but have always reserved "genuine patriotism" for la nation canadienne-francaise." 83 According to Taylor, "people need a group identification, the most obvious group being nationality based on language." 84 As a form of patriotism, nationalism in this sense arises from "a strong identification with a community." Requiring "self-rule" in order to express itself properly, in order to be self-determining, the community must "be given some sort of political personality." 85 The most easily recognizable form of "political personality" available to the community is the sovereign state. It is not necessarily the case, however, that all communities qualifying as nations require a separate sovereign state to be self-determining. "Political expression" can be achieved in other ways. A federation, for example, can provide a 'national community' with the necessary institutional features to be self-governing. For Taylor, "[s]elf-determination is the right of a nation, because it is the condition of self-rule of the people who form the nation." 86 When a nation's ability to rule itself is threatened, either by overtly coercive methods, such as the sort of physical confrontation that took place during the American Revolution, or by more subtle, but 83 Charles Taylor, "Shared and Divergent Values," in Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, ed. Guy LaForest (Montreal and Kingston: McGill-Queen's University Press, 1993), Charles Taylor, "Why Do Nations Have to Become States?," in Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, ed. Guy LaForest (Montreal and Kingston: McGill-Queen's University Press, 1993), Ibid. 86 Ibid., 43.

22 21 nonetheless obvious, means (at least to the nation concerned), such as the potentially hegemonic position held by the English language in North America and the precarious cultural position that the French occupy as a result, then the nation is perfectly justified in taking protective action. However, it is not necessary that a nation become a state in order to protect itself. "If you are a colony," Taylor argues, "you have as a nation no choice." 87 Quebec, Taylor contends, is certainly not a colony in the traditional sense of the term and is, hence, not threatened in the same way, as were, for example, the Thirteen Colonies. Nevertheless, Quebec needs an independent political instrument in order to ensure participation in economic direction, a role in technology design and the like either because of the overwhelming force of the neighbouring Anglo-Saxon culture of 250 million, the richest and strongest economy in the world, or because of the greater political clout that the English-Canadian majority inevitably exercises in Canada; or for both reasons. 88 Is this protection achievable, however, within the current Canadian federal system? Taylor suggests that it is, but that fundamental changes are necessary. The most important of these does not involve the redistribution of powers, but recognition. To be recognized in modern liberal democratic societies, Taylor argues, is to be accorded a particular status, that of an equal and autonomous citizen. To be recognized as such is to have one's identity, and its component parts, its values and allegiances, accepted by others as legitimate. 89 To demand recognition, is to demand to "be acknowledged and 87 Ibid., Ibid., Ibid., 45.

23 22 valued for what [one is]." 90 For Taylor, the demand is a natural impulse. "All people," he argues, "want to be recognized for what they are, but this need takes on a peculiar importance in modern society, where our sense of identity what we want to be recognized as is being defined in new and often original terms." 91 Importantly, recognition is not solely an individual concern. "Mutual recognition between groups has come to be a crucial issue in modern politics because of the very nature of modern society." 92 For Taylor, this is the root of Canada s problems. When a demand for recognition goes unfulfilled, problems arise. Within the confines of a modern democratic state, for example, the perceived inequality that comes with the lack of recognition suggests to the individual or group that "one's own voice does not count, or is weighed at a discount, in the decisions of this sovereign entity." 93 Lack of recognition as a perceived inequality is particularly problematic because "even where obvious modes of discrimination have been neutralized, the issue of recognition can still arise." 94 This occurs, for example, when "what is important to us in defining who we are may be quite unacknowledged, may even be condemned in the public life of our society, even though all our citizen rights are firmly guaranteed." 95 This failure of others to accept this identity, if it should result in a "prolonged refusal of recognition between groups in a society can erode the common understanding of equal participation on which a functioning liberal democracy crucially 90 Charles Taylor, "Impediments to a Canadian Future," in Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, ed. Guy LaForest (Montreal and Kingston: McGill-Queen's, 1993), Ibid., Ibid. 93 Ibid. 94 Ibid., Ibid.

24 23 depends." 96 In this light, the consistent failure of Canadian society to recognize the French nation within it a nation given political expression through the province of Quebec has led to the current constitutional impasse and calls into question the legitimacy of federalism in Canada. If it cannot be resolved, Quebeckers may be forced to look internationally for the recognition they seek, through separation. What, however, is it that Canada currently fails to recognize? What sort of recognition is it that Quebeckers seek? "[T]he recognition they seek," Taylor argues, "is of societies." 97 Distinguished from demands "to recognize a category of citizens with a particular life-situation," 98 societal demands for recognition cannot be reconciled within a constitution that only "protects the rights of the individual in a variety of ways" and "defends against discriminatory treatment on a number of irrelevant grounds." 99 With regard to the Canadian situation, Taylor argues that adopting collective provisions in the constitution allowing Quebec to pursue policies designed to preserve and promote its cultural distinctness, to preserve and promote la nation canadienne-francaise, is essential. To do so would show Quebeckers "that la nation canadienne-francaise [is] recognized as a crucial component of the country, as an entity whose survival and flourishing was one of the main purposes of Canada as a political society." 100 Achieving such recognition will not be easy. So, while it may be the case that Quebec is not disadvantaged in the same way that a colonial society is, the lack of recognition it receives within the Canadian federation may "make it such that the only 96 Ibid. 97 Ibid., Ibid. 99 Taylor, "Shared and Divergent Values," Ibid.